When is contaminated land certified as not ‘Contaminated Land’? - The Law Society’s revised Guidance Note on environmental liability.
The Law Society has just reissued its Contaminated Land warning card to solicitors - but conveyancers must realise that negative search results do not mean what you might think they do. Also a Search Certificate that the land is not within the statutory definition of ‘EPA Contaminated Land’ does not mean that the land is not actually contaminated - and conveyancers might be blamed for not explaining to clients what the searches actually mean!
Now sadly the Law Society’s Guidance Note could be misleading as it only deals with EPA liability but as any Environmental Lawyer will tell you that is only a tiny part of the story…
Back in 1990 the Environmental Protection Act 1990 (the ‘EPA’) created shockwaves as the new regime cast liability on polluters. Banks and landowners were worried about being served with an EPA Remediation Notice. Many firms set up Environmental Law teams, mine included, and I even obtained a Masters degree in Environmental Law. However the Environment Act 1995 (and the Statutory Guidance issued under it) emasculated the original regime, requiring proof of pollutant-pathway-receptor linkages causing significant harm before land fell within the now very restrictive statutory definition of what I am calling ‘EPA Contaminated Land’.
So, to take it to extremes, you can have lots of horrible chemicals buried underground on a site, covered by a barrier such as a thin plastic membrane, or 6 inches of hard landscaping or a metre of clay - and, hey presto, the land is no longer within the statutory EPA definition of ‘EPA Contaminated Land! The much feared EPA Remediation Notice could not be served because there is a barrier between the pollutant and the potential receptor - hence no ‘linkage’. However the soil underneath might still be contaminated enough to melt your wellies if you dug a hole through the barrier, or tried to develop the land.
What’s more the revised Guidance issued in 2012 made it clear that the much feared EPA Remediation Notices are going to be almost as rare as hens teeth - these are to be used as an absolute last resort. The Government feels that historic land contamination issues should be addressed through the planning process. Developers are expected to deal with contamination by or removing it or installing barriers. Brownfield contaminated land is being developed for housing all the time - I remember acting on the sale of an old asbestos factory riddled with the stuff to a residential developer!
So what do the searches tell you and what do you tell clients?
Well the searches are very good in what they do, which is to research statutory registers and historic records of land use, previous activities, records of pollution incidents and so on for indications that the land may have been used for a purpose which could have caused ‘contamination’ using the normal meaning of the word.
So a search could reveal the presence of landfill sites or factories on or near the property that could have caused pollution to it. Whether or not the land is or could be contaminated (ordinary meaning) is key point for any land user, as regardless of whether the land is ‘EPA Contaminated Land’ or just plain polluted. This is the most useful part of the search and the results should be considered carefully with the client. If the previous uses have left contamination - will that be a problem for the client and their proposed use?
The search providers make it very clear that they don’t physically inspect the land - and you have to make clear to clients that they should inspect the land itself. I have seen many negative (or ‘clear’) searches on land that had huge pools of contamination, or leaking oil tanks alongside rivers and canals - accidents waiting to happen.
Then the searches usually go on to certify that based on these results the land is not likely to fall within the very restrictive statutory EPA definition of Contaminated Land - possibly because there is no ‘linkage’ as described.
However this certificate does not mean that the land is not actually contaminated (within the ordinary dictionary definition)! To be fair to the search companies they make this clear but conveyancers may be tempted to think that if they have the certificate there is nothing to worry about - but this could be wrong. Whether the situation is acceptable depends on what the previous uses were and what the client intends to with the land.
So what do you do?
- By all means make Environmental Searches and the products offered are generally good. The information revealed is much more that you could discover from any other source
- Look at the results to see whether the previous uses could have caused contamination in the ordinary sense of the word - tanneries, factories, coal or oil storage, gas works…. you name it. Discuss with the client what they want to do with the land and whether the possibility that the land is contaminated (ordinary meaning) is a problem to them
- If the land IS potentially within the ‘EPA Contaminated Land’ definition then proper Environmental Consultants should asked to advise on the matter.
- Don’t just focus on the ‘EPA Contaminated Land Certificate’. If the land is certified as NOT likely to be EPA Contaminated Land then clients need to realise that the land could still be ‘contaminated’ by pollution within the ordinary meaning of the phrase, and that this could affect how they use it or develop the land. Clients must realise that it is not within your skills or training to advise on such matters but that Environmental Consultants should be instructed to carry out an inspection (and possible tests). The consultants should report to them direct on the issue, as with structural or other surveys.